Before Rosh Hashana, Orthodox Jews gather at night to read and study in a ritual known as Selichot (“penitential prayers”). The ritual is meant to spiritually attune the mind and soul to repentance and introspection, primary themes of the High Holidays.

One of the leading land-grabbers in East Jerusalem is an Israeli settler NGO, Elad, one of whose tactics has been to have Palestinian homes declared archaeological sites. This allows them to condemn and expel the residents and then create artificial archaeology parks. Elad celebrated one of its major projects, opening a hitherto “secret tunnel” from the City of David (one of its archaeological sites) to the Western Wall (Kotel) at such a Selichot ceremony.

Elad’s goal is to rid Jerusalem, especially those parts of it with Jewish historical significance (which most often happen to be within Palestinian neighborhoods), of Arabs. It will do so by hook or by crook. Since Palestinians don’t generally take well to their homes being taken out from under them–it’s usually by crook. Elad is part of the settler movement that seeks, either intentionally or unintentionally to create a religious conflict between Israeli Jews and Palestinians. For Elad, this is a Jewish jihad, literally a Jewish struggle for dominance of the Holy City.

Who should join these settlers in commemorating their service on behalf of the Jewish people and their expropriation of Palestinian land? None other than Nobel Peace Prize winner and Jewish humanitarian par excellence, Elie Wiesel. In fact, he’s the chair of this settler group’s Advisory Board. He was joined by two former Israeli intelligence chiefs, Shabtai Shavit and Amos Yadlin, a number of prominent judges, lawyers, entertainers and government officials.

I can remember in the late 1960s when Wiesel spoke frequently to Jewish community gatherings in Rockland Country, NY where I grew up. My congregation rabbi would pick me up and bring me to hear him speak, because he thought it would open my mind to the moral dignity, teachings and Jewish values of this great man. Wiesel was such an inspiring figure then. A towering exemplar of Jewish dignity amid suffering. Now, he is a caricature of his former self.

The poster image reads:

The Advisory Board of Elad blesses the City of Jerusalem on the opening to the public of the Hidden (or secret) Tunnel from the City of David national part to the stones of the Western Wall.

It thanks the Nature and Parks Authority and Municipality of Jerusalem for their donations.

Having read “Night,” I feel like Wiesel was never much of a moral leader, but a melodramatic, megalomaniacal buffoon who offers no moral or intellectual insights regarding the holocaust or anything else. Primo Levi’s books were far, far superior, but because he was not a banal self-aggrandizer, they are much less influential.

On a separate note, I want to inform or remind readers, as the case may be, that what Elie Wiesel (and Yehoram Gaon, one of Israel’s most famous singers, and others) is doing is a crime, literally. We focus on the liability of states under international law, but usually ignore the fact that when individuals aid and abet states in their crimes, they are subject to the doctrine of accomplice liability. If the occupation is a grave violation of the fourth Geneva Convention, which it likely is, then Wiesel (and Gaon, and settlers) are liable as war criminals.

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The occupation itself is not the infringement of the Geneva Convention (so long as the land is not annexed), but rather the transfer of population to the OT is an alleged infringement (there is no definition of “grave violation”, as you state, or other grades of violation in the Convention).

If there is an infringement of IL it is a State infringement and the “criminals” are the political leaders who decided on the transfer. The transferees have committed no IL crime by agreeing to their government’s decision. There is no way to interpret the wording of the Geneva Conv. to mean that a transferee is committing a crime. In fact the transferee is usually a victim rather than a volunteer. Someone who supports or encourages a transfer is certainly not culpable by any stretch of international law.

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Shmuel, in common with the other three, the fourth Geneva Convention (protection of civilian persons in time of war) does distinguish between breaches and grave breaches of the Convention — see Articles 146 and 147.

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“which it likely is, then Wiesel (and Gaon, and settlers) are liable as war criminals.”

Amen Uri, But you know the double standard kicks in here, a different set of rules for you know who. Weisel has been completely discredited in the States, but they keep him propped up to keep the myth going for as long as they can. He’s kind of like the silly movie years ago where some young people got a big beach house place going as a party pad after the owner died by propping his body up like he was passed out.

Now Elie is just a symbol of the depths that people will sink to, his so called supporters to put gift wrapping and a bow on the ongoing tragedy they have caused.

We see a definite trend now of contempt for many of these Cold War era phonies. Even Daddy Bush is going to be on the firing line. There is talk now of a clean sweep, that nothing can ever be fixed with any of them being involved.
And they want to tear their reputations down.

But the divide and conquer Left versus Right game is still the main event for many, even though it is a lose lose game. But we struggle on. We have much to do before we are 85 :-)

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the fourth geneva defines grave violations in article 147. i believe all of the other geneva conventions define grave violations as well. as part of the definition, violations of the convention are grave violations if they involve “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

i would further note that grave violations of the geneva conventions are referenced in U.S. law, namely the war crimes act of 1996, which criminalizes them and therefore makes people like elie wiesel punishable by the U.S. courts, if his conduct indeed amounts to war crimes (which in my opinion, based only on reading article 147, is a maybe; some people with more authority than me, such as former red cross official rene kosirnik, are more definite about it).

you are correct about the violation in question being the transfer of the civilian population. of course, any civilian occupation will necessarily entail a violation of this provision (military occupation could violate other provisions of the convention, but not the particular one we’re talking about).

my point about individual liability is not that it is in the text of the geneva convention, or that it applies to every individual settler. having lived in the settlements myself, i do not view myself as a war criminal. the liability arises under the doctrine of accomplice liability, according to which an individual who aids and abets a crime is as liable for it as the principal who committed it. a separate prohibition against aiding and abetting is not necessary for accomplice liability. william schabas has shown that there’s a long history of holding accomplices liabilitle under international law. to be even more clear: we’re not talking about liability of individuals for actions in their capacity as representatives of the state, but for their actions as individuals or representatives of corporations. i’m not talking about people like eichmann; i’m talking about people like the executives of i.g. farben, who in their corporate capacity sold the german government the gas that they used to murder jews. i.g. farben executives were prosecuted as accomplices at nuremburg but were acquitted – because prosecutors couldn’t prove that they knew the gas was being used to kill people; they claimed they thought it was being used as an insecticide in the concentration camps.

as for who’s liable – it’s a question of the conduct, knowledge and agency of each individual, with intent being a key factor. the principals of a criminal organization like elad are surely more liable than a settler who does nothing other than buy a house in a settlement and move there, because their purpose is to move more settlers into the occupied territory and to extend israeli sovereignty over palestinian territory.

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The fact is that articles 8.2.(a)(vii) and 8.2.(b)(viii) of the Rome Statute make the population transfers in question crimes within the jurisdiction of the ICC and its 118 signatory states. link to untreaty.un.org

FYI, the Diplomatic Conference included Articles 85.4.(a) and 85.5. in the 1st Additional Protocol in 1977. Those articles declared population transfer to be a grave breach of the Geneva Conventions. Those articles have been adopted by 171 state parties and were included in the Rome Statute on the basis of their status as customary international law. link to icrc.org

Article 25 of the Rome statute addresses the criteria for prosecution of individuals who are part of a joint criminal enterprise. Individuals can be held criminally liable for aiding, abetting, soliciting, or inducing a crime whether they are government officials or not.

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As long as international law is not enforced, why should offenders care?

To turn the question around, why should the prosecutors care if the defendants are indifferent? The ICC has been prosecuting persons for violations of international law since 2005. There are a number trials in-progress. Offenders who violate the terms of the Rome Statute are committing crimes for which there is no statute of limitations. I suppose some offenders don’t mind being pursued by the functional equivalent of Simon Wiesenthal for the rest of their lives, but most of us would.

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And enforced by whom, of course, and who will pay for it …and take the blame if more people are killed. Always a messy option.

The ICC was established outside of the UN organization due to the objections of some members to any amendments to the UN Charter. So it is not an integral part of the UN like the ICJ.

It has it own legislative body, the Assembly of State Parties, and is funded by the member states. It is a court of last resort. So, the members are expected to enforce international criminal law in their own national courts under normal circumstances. They carry-out arrests and surrender suspects when required under the terms of the Rome Statute.

The members have already amended the Statute to define the crime of aggression. So the organization will develop over time and can, at least in theory, adapt and change if and when required.

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what’s the legal effect of the provisions in the additional protocol and the rome statute, considering that neither has been ratified by israel (or the united states)?

The Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto”.link to icrc.org

The majority of other states which have formally recognized Palestine have implicitly accepted the validity of its undertaking to apply the Geneva Conventions. Recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. The UN Charter, Montevideo Convention, & OAS Charter are based upon the principle that States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. So, Israel and the United States have resorted to blackmail to keep Palestine out of the UN, UNESCO, and the WHO ever since 1989 – and cast doubt upon its international status.

In 2009 the Palestinians accepted the jurisdiction of the ICC as a non-member state in accordance with Article 12(3) of the Rome Statute. The declaration covers all crimes committed on the territory of Palestine after the Statute entered into effect in 2002.

Most states have recognized Palestine since the 1988 Algiers UDI, but an upgrade in its status to a UN observer state would permit it to formally join the ICC as a member state. For example, Ambassador Christian Wenaweser, president of the ICC Assembly of State Parties, told Joe Lauria of the WSJ that a Palestinian observer state could join the ICC and ask the court to investigate any alleged war crimes and other charges against Israel committed on Palestinian territory after July 2002, including Israel’s 2008-09 assault on the Gaza Strip. The Rome Statute is open to signature under the “All States” formula in accordance with Article 125.

The UN Secretary General serves as depositary and accepts instruments from any entity that has been unequivocally recognized as a state in a General Assembly resolution. See The “Vienna formula”; the “all States formula”; the practice of the General Assembly” starting on pdf page 37 in “Summary Of Practice Of The Secretary-General As Depositary Of Multilateral Treaties”. link to treaties.un.org

Neither Israel nor the United States can prevent the ICC from undertaking investigations, issuing arrest warrants, prosecutions. Only the Security Council can defer investigations or prosecutions for a period of 12 months by adopting a Chapter VII resolution under the terms of Article 16 of the Rome Statute. It’s extremely doubtful that Israel or the US could rely on nine votes in favor of a resolution or that they could rule out a veto from one of the other permanent members of the Security Council.

FYI, a total or substantial collapse or unavailability of the Palestinian national judicial system due to the occupation, or any inability to carry out its own proceedings would tend to trigger ICC jurisdiction in accordance with Article 17 of the Rome Statute.

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